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Who owns the official recording of your interaction with the police?

On 28 July 2015, the Los Angeles Times notified its readers that it
had fired editorial cartoonist Ted Rall, as a result of a tape produced by the
Los Angeles Police Department (LAPD) appearing
to contradict Rall’s own account of a jay-walking incident
that occurred 14 years earlier, and did not result in any arrest or prosecution. As people concerned with technology policy / life, we can ignore the (admittedly interesting) personalities involved or any disputed aspects of the case and still
have some very interesting questions to ask:

What percentage of interactions with the police are
currently recorded, and have been historically?

Who has the right to access these recordings? On
the one hand, this could be an invaluable record for activists, social
scientists, and government regulators interested in questions of police
conduct. On the other hand, such
recordings seem like an
important domain for the disputable "right" to be forgotten.

I teach computer science in the UK, where I am legally obliged to
remind undergraduates of the UK’s Data Protection Act, a 1998 act of
parliament that brought the UK into compliance with its treaty obligations to
the EU, specifically with the EU’s data protection directive of 1995. What
we are obliged to hammer into our undergraduates seems relevant here, that

“Personal data processed for
any purpose or purposes shall not be kept for longer than is necessary for that
purpose or those purposes.”

Fourteen years seems a lot longer than necessary for a jay-walking non arrest. But
maybe more importantly given topical concerns such as #BlackLivesMatter, the
data protection act also says that individuals have rights to any data held
about them. Of particular relevance here (and I quote, without prejudice, Wikipedia):

The Data Protection Act creates rights for those who
have their data stored, and responsibilities for those who store, process or
transmit such data. The person who has their data processed has the right to:[5]

View the data an organisation holds on them. A
‘subject access request’ can be obtained for a nominal fee. As of January 2014,
the maximum fee is £2 for requests to credit reference agencies, £50 for health
and educational request, and £10 per individual otherwise,[6]

Require that data is not used in any way that may
potentially cause damage or distress.[8]

We have some similar rights in the USA, but some of
them vary by state and municipality. Federally held information is
covered by the Federal Privacy Act, but of course police are
not a part of the federal government. Also, that act only guarantees
access to information held about yourself, and the right to correct errors, but not
the right to destroy it. Notice though that the recording of an
interaction between two or more citizens (in this case, one a police officer,
one not), would in this case belong to both of them, so negotiating destruction even if it were an option would
not necessarily be easy. A lawyer from Wisconsin I contacted told me
that Wisconsin does allow you to request that data held on you be destroyed.
In fact, the Wisconsin State Archivist had told him that he
(the lawyer) was the only individual who had exercised that right in the
archivist’s memory, but that portions of the Wisconsin government exercised
their own such right regularly.

If our states and communities did give us
the same rights that European citizens had, then any of us who have been
recorded by police (and there’s likely to be many more of us in this situation soon) would
have rights that both dictate that:

we should have access to those recordings, and perhaps

that the police should be destroying a great many
out-of-date ones.

Obviously, these two rights would conflict.
Also, the destruction of data of course would mean it would not be
accessible for study by social scientists, regulators or investigators looking
to understand (for example) how and when laws have been applied, or how enforcement changes
over time. Notice also that it is quite possible for police in one
municipality to have data about residents of another, so this is not a
situation that can just be handled easily at a local level. Europe
handled this problem by creating an international directive that guided national laws,
but the legal situation is different in our federation of states.

On or around 14 August 2015 I tried to publish this blogpost through the CITP blog, Freedom to Tinker, but the gatekeeper there didn't think I was sufficiently expert to post on this kind of topic. So I've been chasing lawyers etc. to get the blog post out, off and on for months. The above text reflects another of the CITP fellows' input, but while he signed off on me posting his revisions, he still never signed off on being named. Meanwhile, the topics of data ownership, police records, and police-community relations are getting more salient by the day. I have decided to give up on worrying about prestige blog gatekeepers and just go back to posting my informed-if-not-expert opinions on my own blog. Part of what science is about is not being afraid of being wrong, but rather putting your best effort forward where your peers can critique it. This is how progress gets made, as a collective effort.

If you can't guess, what prompted me to get this out today was Ian Murdock.

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